Contract
EXHIBIT
10.7
This
Director and Officer Indemnification Agreement, dated as of ________, 2008 (this
"Agreement"),
is made by and
between IX Energy Holdings, Inc., a Delaware corporation (the "Company"),
and _____________ (the “Indemnitee").
RECITALS:
A. Section
141 of the Delaware General Corporation Law provides that the business and
affairs of a corporation shall be managed by or under the direction of its board
of directors.
B. By virtue
of the managerial prerogatives vested in the directors and officers of a
Delaware corporation, directors and officers act as fiduciaries of the
corporation and its stockholders.
C. Thus, it
is critically important to the Company and its stockholders that the Company be
able to attract and retain the most capable persons reasonably available to
serve as directors and officers of the Company.
D. In
recognition of the need for corporations to be able to induce capable and
responsible persons to accept positions in corporate management, Delaware law
authorizes (and in some instances requires) corporations to indemnify their
directors and officers, and further authorizes corporations to purchase and
maintain insurance for the benefit of their directors and officers.
E. The
Delaware courts have recognized that indemnification by a corporation serves the
dual policies of (1) allowing corporate officials to resist unjustified
lawsuits, secure in the knowledge that, if vindicated, the corporation will bear
the expense of litigation, and (2) encouraging capable women and men to serve as
corporate directors and officers, secure in the knowledge that the corporation
will absorb the costs of defending their honesty and integrity.
F. The
number of lawsuits challenging the judgment and actions of directors and
officers of Delaware corporations, the costs of defending those lawsuits and the
threat to personal assets have all materially increased over the past several
years, chilling the willingness of capable women and men to undertake the
responsibilities imposed on corporate directors and officers.
G. Recent
federal legislation and rules adopted by the Securities and Exchange Commission
and the national securities exchanges have exposed such directors and officers
to new and substantially broadened civil liabilities.
H. Under
Delaware law, a director's or officer's right to be reimbursed for the costs of
defense of criminal actions, whether such claims are asserted under state or
federal law, does not depend upon the merits of the claims asserted against the
director or officer and is separate and distinct from any right to
indemnification the director may be able to establish.
I. Indemnitee
is, or will be, a director and/or officer of the Company and his or her
willingness to serve in such capacity is predicated, in substantial part, upon
the Company's willingness to indemnify him or her in accordance with the
principles reflected above, to the fullest extent permitted by the laws of the
State of Delaware, and upon the other undertakings set forth in this
Agreement.
J. Therefore,
in recognition of the need to provide Indemnitee with substantial protection
against personal liability, in order to procure Indemnitee's continued service
as a director and/or officer of the Company and to enhance Indemnitee's ability
to serve the Company in an effective manner, and in order to provide such
protection pursuant to express contract rights (intended to be enforceable
irrespective of, among other things, any amendment to the Company's certificate
of incorporation or bylaws (collectively, the "Constituent
Documents"), any change in the composition of the Company's Board of
Directors (the "Board")
or any change-in-control or business combination transaction relating to
the Company), the Company wishes to provide in this Agreement for the
indemnification and advancement of Expenses to Indemnitee on the terms, and
subject to the conditions, set forth in this Agreement.
K. In light
of the considerations referred to in the preceding recitals, it is the Company's
intention and desire that the provisions of this Agreement be construed
liberally, subject to their express terms, to maximize the protections to be
provided to Indemnitee hereunder.
AGREEMENT:
NOW,
THEREFORE, the parties hereby agree as follows:
1. Certain Definitions.
In addition to terms defined elsewhere herein, the following terms have the
following meanings when used in this Agreement with initial capital
letters:
"Change in
Control" shall have occurred at such time, if any, as Incumbent Directors
cease for any reason to constitute a majority of Directors. For purposes of this
Section 1(a), "Incumbent
Directors" means the individuals who, as of the date hereof, are
Directors of the Company and any individual becoming a Director subsequent to
the date hereof whose election, nomination for election by the Company's
stockholders, or appointment, was approved by a vote of at least a majority of
the then Incumbent Directors (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination); provided, however, that an
individual shall not be an Incumbent Director if such individual's election or
appointment to the Board occurs as a result of an actual or threatened election
contest (as described in Rule 14a-12(c) of the Securities Exchange Act of 1934,
as amended) with respect to the election or removal of directors or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board.
"Claim"
means (i) any threatened, asserted, pending or completed claim, demand,
action, suit or proceeding, whether civil, criminal, administrative,
arbitrative, investigative or other, and whether made pursuant to federal, state
or other law; and (ii) any inquiry or investigation, whether made, instituted or
conducted by the Company or any other Person, including, without limitation, any
federal, state or other governmental entity, that Indemnitee reasonably
determines might lead to the institution of any such claim, demand, action, suit
or proceeding. For the avoidance of doubt, the Company intends indemnity to be
provided hereunder in respect of acts or failure to act prior to, on or after
the date hereof.
"Controlled
Affiliate" means any corporation, limited liability company, partnership,
joint venture, trust or other entity or enterprise, whether or not for profit,
that is directly or indirectly controlled by the Company. For purposes of this
definition, "control"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of an entity or enterprise,
whether through the ownership of voting securities, through other voting rights,
by contract or otherwise; provided that direct or
indirect beneficial ownership of capital stock or other interests in an entity
or enterprise entitling the holder to cast 15% or more of the total number of
votes generally entitled to be cast in the election of directors (or persons
performing comparable functions) of such entity or enterprise shall be deemed to
constitute control for purposes of this definition.
"Disinterested
Director" means a director of the Company who is not and was not a party
to the Claim in respect of which indemnification is sought by
Indemnitee.
"Expenses"
means attorneys' and experts' fees and expenses and all other costs and
expenses paid or payable in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to
investigate, defend, be a witness in or participate in (including on appeal),
any Claim.
"Indemnifiable
Claim" means any Claim based upon, arising out of or resulting from (i)
any actual, alleged or suspected act or failure to act by Indemnitee in his or
her capacity as a director, officer, employee or agent of the Company or as a
director, officer, employee, member, manager, trustee or agent of any other
corporation, limited liability company, partnership, joint venture, trust or
other entity or enterprise, whether or not for profit, as to which Indemnitee is
or was serving at the request of the Company, (ii) any actual, alleged or
suspected act or failure to act by Indemnitee in respect of any business,
transaction, communication, filing, disclosure or other activity of the Company
or any other entity or enterprise referred to in clause (i) of this sentence, or
(iii) Indemnitee's status as a current or former director, officer, employee or
agent of the Company or as a current or former director, officer, employee,
member, manager, trustee or agent of the Company or any other entity or
enterprise referred to in clause (i) of this sentence or any actual, alleged or
suspected act or failure to act by Indemnitee in connection with any obligation
or restriction imposed upon Indemnitee by reason of such status. In addition to
any service at the actual request of the Company, for purposes of this
Agreement, Indemnitee shall be deemed to be serving or to have served at the
request of the Company as a director, officer, employee, member, manager,
trustee or agent of another entity or enterprise if Indemnitee is or was serving
as a director, officer, employee, member, manager, agent, trustee or other
fiduciary of such entity or enterprise and (i) such entity or enterprise is or
at the time of such service was a Controlled Affiliate, (ii) such entity or
enterprise is or at the time of such service was an employee benefit plan (or
related trust) sponsored or maintained by the Company or a Controlled Affiliate,
or (iii) the Company or a Controlled Affiliate (by action of the Board, any
committee thereof or the Company's Chief Executive Officer ("CEO") (other than
as the CEO him or herself)) caused or authorized Indemnitee to be nominated,
elected, appointed, designated, employed, engaged or selected to serve in such
capacity.
"Indemnifiable
Losses" means any and all Losses relating to, arising out of or resulting
from any Indemnifiable Claim; provided, however, that
Indemnifiable Losses shall not include Losses incurred by Indemnitee in respect
of any Indemnifiable Claim (or any matter or issue therein) as to which
Indemnitee shall have been adjudged liable to the Company, unless and only to
the extent that the Delaware Court of Chancery or the court in which such
Indemnifiable Claim was brought shall have determined upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnification for
such Expenses as the court shall deem proper.
"Independent
Counsel" means a nationally recognized law firm, or a member of a
nationally recognized law firm, that is experienced in matters of Delaware
corporate law and neither presently is, nor in the past five years has been,
retained to represent: (i) the Company (or any subsidiary) or Indemnitee in any
matter material to either such party (other than with respect to matters
concerning the Indemnitee under this Agreement, or of other indemnitees under
similar indemnification agreements) or (ii) any other named (or, as to a
threatened matter, reasonably likely to be named) party to the Indemnifiable
Claim giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee's rights under this Agreement.
"Losses"
means any and all Expenses, damages, losses, liabilities, judgments,
fines, penalties (whether civil, criminal or other) and amounts paid or payable
in settlement, including, without limitation, all interest, assessments and
other charges paid or payable in connection with or in respect of any of the
foregoing.
"Person" means any individual,
entity or group, within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended.
"Standard of
Conduct" means the standard for conduct by Indemnitee that is a condition
precedent to indemnification of Indemnitee hereunder against Indemnifiable
Losses relating to, arising out of or resulting from an Indemnifiable Claim. The
Standard of Conduct is (i) good faith and a reasonable belief by Indemnitee that
his action was in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, that Indemnitee had no reasonable
cause to believe that his conduct was unlawful, or (ii) any other applicable
standard of conduct that may hereafter be substituted under Section 145(a) or
(b) of the Delaware General Corporation Law or any successor to such
provision(s).
2. Indemnification
Obligation. Subject only to
Section 7 and to the proviso in this Section, the Company shall indemnify,
defend and hold harmless Indemnitee, to the fullest extent permitted or required
by the laws of the State of Delaware in effect on the date hereof or as such
laws may from time to time hereafter be amended to increase the scope of such
permitted indemnification, against any and all Indemnifiable Claims and
Indemnifiable Losses; provided, however, that,
except as provided in Section 5, Indemnitee shall not be entitled to
indemnification pursuant to this Agreement in connection with (i) any Claim
initiated by Indemnitee against the Company or any director or officer of the
Company unless the Company has joined in or consented to the initiation of such
Claim, or (ii) the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended. The Company
acknowledges that the foregoing obligation may be broader than that now provided
by applicable law and the Company's Constituent Documents and intends that it be
interpreted consistently with this Section and the recitals to this
Agreement.
3. Advancement of
Expenses. Indemnitee
shall have the right to advancement by the Company prior to the final
disposition of any Indemnifiable Claim of any and all actual and reasonable
Expenses relating to, arising out of or resulting from any Indemnifiable Claim
paid or incurred by Indemnitee. Without limiting the generality or effect of any
other provision hereof, Indemnitee's right to such advancement is not subject to
the satisfaction of any Standard of Conduct. Without limiting the generality or
effect of the foregoing, within five business days after any request by
Indemnitee that is accompanied by supporting documentation for specific
reasonable Expenses to be reimbursed or advanced, the Company shall, in
accordance with such request (but without duplication), (a) pay such Expenses on
behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to
pay such Expenses, or (c) reimburse Indemnitee for such Expenses; provided that Indemnitee
shall repay, without interest, any amounts actually advanced to Indemnitee that,
at the final disposition of the Indemnifiable Claim to which the advance
related, were in excess of amounts paid or payable by Indemnitee in respect of
Expenses relating to, arising out of or resulting from such Indemnifiable Claim.
In connection with any such payment, advancement or reimbursement, at the
request of the Company, Indemnitee shall execute and deliver to the Company an
undertaking, which need not be secured and shall be accepted without reference
to Indemnitee's ability to repay the Expenses, by or on behalf of the
Indemnitee, to repay any amounts paid, advanced or reimbursed by the Company in
respect of Expenses relating to, arising out of or resulting from any
Indemnifiable Claim in respect of which it shall have been determined, following
the final disposition of such Indemnifiable Claim and in accordance with Section
7, that Indemnitee is not entitled to indemnification hereunder.
4. Indemnification for
Additional Expenses. Without
limiting the generality or effect of the foregoing, the Company shall indemnify
and hold harmless Indemnitee against and, if requested by Indemnitee, shall
reimburse Indemnitee for, or advance to Indemnitee, within five business days of
such request accompanied by supporting documentation for specific Expenses to be
reimbursed or advanced, any and all actual and reasonable Expenses paid or
incurred by Indemnitee in connection with any Claim made, instituted or
conducted by Indemnitee for (a) indemnification or reimbursement or advance
payment of Expenses by the Company under any provision of this Agreement, or
under any other agreement or provision of the Constituent Documents now or
hereafter in effect relating to Indemnifiable Claims, and/or (b) recovery under
any directors' and officers' liability insurance policies maintained by the
Company; provided, however,
if it is ultimately determined that the Indemnitee is not entitled to
such indemnification, reimbursement, advance or insurance recovery, as the case
may be, then the Indemnitee shall be obligated to repay any such Expenses to the
Company; provided further,
that, regardless in each case of whether Indemnitee ultimately is
determined to be entitled to such indemnification, reimbursement, advance or
insurance recovery, as the case may be, Indemnitee shall return, without
interest, any such advance of Expenses (or portion thereof) which remains
unspent at the final disposition of the Claim to which the advance
related.
5. Partial Indemnity. If Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any Indemnifiable Loss but not for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled.
6. Procedure for
Notification. To obtain
indemnification under this Agreement in respect of an Indemnifiable Claim or
Indemnifiable Loss, Indemnitee shall submit to the Company a written request
therefore, including a brief description (based upon information then available
to Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the
time of the receipt of such request, the Company has directors' and officers'
liability insurance in effect under which coverage for such Indemnifiable Claim
or Indemnifiable Loss is potentially available, the Company shall give prompt
written notice of such Indemnifiable Claim or Indemnifiable Loss to the
applicable insurers in accordance with the procedures set forth in the
applicable policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
Indemnifiable Claims and Indemnifiable Losses in accordance with the terms of
such policies. The Company shall provide to Indemnitee a copy of such notice
delivered to the applicable insurers, substantially concurrently with the
delivery thereof by the Company. The failure by Indemnitee to timely notify the
Company of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the
Company from any liability hereunder unless, and only to the extent that, the
Company did not otherwise learn of such Indemnifiable Claim or Indemnifiable
Loss and to the extent that such failure results in forfeiture by the Company of
substantial defenses, rights or insurance coverage.
7. Determination of Right to
Indemnification.
To the
extent that Indemnitee shall have been successful on the merits or otherwise in
defense of any Indemnifiable Claim or any portion thereof or in defense of any
issue or matter therein, including, without limitation, dismissal without
prejudice, Indemnitee shall be indemnified against all Indemnifiable Losses
relating to, arising out of or resulting from such Indemnifiable Claim in
accordance with Section 2 and no Standard of Conduct Determination (as
defined in Section 7(b)) shall be required.
To the
extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable
Claim that shall have been finally disposed of, any determination of whether
Indemnitee has satisfied the applicable Standard of Conduct (a "Standard
of Conduct
Determination ") shall be made as follows: (i) if a Change in Control
shall not have occurred, or if a Change in Control shall have occurred but
Indemnitee shall have requested that the Standard of Conduct Determination be
made pursuant to this clause (i), (A) by a majority vote of the Disinterested
Directors, even if less than a quorum of the Board, (B) if such Disinterested
Directors so direct, by a majority vote of a committee of Disinterested
Directors designated by a majority vote of all Disinterested Directors, or (C)
if there are no such Disinterested Directors, or if a majority of the
Disinterested Directors so direct, by Independent Counsel in a written opinion
addressed to the Board, a copy of which shall be delivered to Indemnitee; and
(ii) if a Change in Control shall have occurred and Indemnitee shall not have
requested that the Standard of Conduct Determination be made pursuant to clause
(i) above, by Independent Counsel in a written opinion addressed to the Board, a
copy of which shall be delivered to Indemnitee.
If (i)
Indemnitee shall be entitled to indemnification hereunder against any
Indemnifiable Losses pursuant to Section 7(a), (ii) no determination of whether
Indemnitee has satisfied any applicable standard of conduct under Delaware law
is a legally required condition precedent to indemnification of Indemnitee
hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been
determined or deemed pursuant to Section 7(b) to have satisfied the applicable
Standard of Conduct, then the Company shall pay to Indemnitee, within five
business days after the later of (x) the Notification Date in respect of the
Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are
related, out of which such Indemnifiable Losses arose or from which such
Indemnifiable Losses resulted, and (y) the earliest date on which the applicable
criterion specified in clause (i), (ii) or (iii) above shall have been
satisfied, an amount equal to the amount of such Indemnifiable Losses. Nothing
herein is intended to mean or imply that the Company is intending to use Section
145(f) of the Delaware General Corporation Law to dispense with a requirement
that Indemnitee meet the applicable Standard of Conduct where it is otherwise
required by such statute.
If a
Standard of Conduct Determination is required to be, but has not been, made by
Independent Counsel pursuant to Section 7(b)(i), the Independent Counsel shall
be selected by the Board or a committee of the Board, and the Company shall give
written notice to Indemnitee advising him or her of the identity of the
Independent Counsel so selected. If a Standard of Conduct Determination is
required to be, or to have been, made by Independent Counsel pursuant to Section
7(b)(ii), the Independent Counsel shall be selected by Indemnitee, and
Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either case, Indemnitee or the
Company, as applicable, may, within five business days after receiving written
notice of selection from the other, deliver to the other a written objection to
such selection; provided,
however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not satisfy the criteria set forth in the
definition of "Independent Counsel" in Section 1(h), and the objection shall set
forth with particularity the factual basis of such assertion. Absent a proper
and timely objection, the Person so selected shall act as Independent Counsel.
If such written objection is properly and timely made and substantiated, (i) the
Independent Counsel so selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection
is without merit and (ii) the non-objecting party may, at its option, select an
alternative Independent
Counsel
and give written notice to the other party advising such other party of the
identity of the alternative Independent Counsel so selected, in which case the
provisions of the two immediately preceding sentences and clause (i) of this
sentence shall apply to such subsequent selection and notice. If applicable, the
provisions of clause (ii) of the immediately preceding sentence shall apply to
successive alternative selections. If no Independent Counsel that is permitted
under the foregoing provisions of this Section 7(d) to make the Standard of
Conduct Determination shall have been selected within 30 calendar days after the
Company gives its initial notice pursuant to the first sentence of this Section
7(d) or Indemnitee gives its initial notice pursuant to the second sentence of
this Section 7(d), as the case may be, either the Company or Indemnitee may
petition the Court of Chancery of the State of Delaware for resolution of any
objection which shall have been made by the Company or Indemnitee to the other's
selection of Independent Counsel and/or for the appointment as Independent
Counsel of a person or firm selected by the Court or by such other person as the
Court shall designate, and the person or firm with respect to whom all
objections are so resolved or the person or firm so appointed will act as
Independent Counsel. In all events, the Company shall pay all of the actual and
reasonable fees and expenses of the Independent Counsel incurred in connection
with the Independent Counsel's determination pursuant to Section
7(b).
8. Cooperation.
Indemnitee shall cooperate with reasonable requests of the Company in connection
with any Indemnifiable Claim and any individual or firm making such Standard of
Conduct Determination, including providing to such Person documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to defend
the Indemnifiable Claim or make any Standard of Conduct Determination without
incurring any unreimbursed cost in connection therewith. The Company shall
indemnify and hold harmless Indemnitee against and, if requested by Indemnitee,
shall reimburse Indemnitee for, or advance to Indemnitee, within five business
days of such request accompanied by supporting documentation for specific costs
and expenses to be reimbursed or advanced, any and all costs and expenses
(including attorneys' and experts' fees and expenses) actually and reasonably
incurred by Indemnitee in so cooperating with the Person defending the
Indemnifiable Claim or making such Standard of Conduct
Determination.
9. Presumption of
Entitlement. Notwithstanding
any other provision hereof, in making any Standard of Conduct Determination, the
Person making such determination shall presume that Indemnitee has satisfied the
applicable Standard of Conduct.
10. No Other
Presumption. For purposes of
this Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo
contendere or its equivalent, will not create a presumption that Indemnitee did
not meet any applicable Standard of Conduct or that indemnification hereunder is
otherwise not permitted.
11. Non-Exclusivity. The
rights of Indemnitee hereunder will be in addition to any other rights
Indemnitee may have under the Constituent Documents, or the substantive laws of
the Company's jurisdiction of incorporation, any other contract or otherwise
(collectively, "Other Indemnity
Provisions"); provided,
however, that (a) to the extent that Indemnitee otherwise would have any
greater right to indemnification under any Other Indemnity Provision, Indemnitee
will without further action be deemed to have such greater right hereunder, and
(b) to the extent that any change is made to any Other Indemnity Provision which
permits any greater right to indemnification than that provided under this
Agreement as of the date hereof, Indemnitee will be deemed to have such greater
right hereunder. The Company may not, without the consent of Indemnitee, adopt
any amendment to any of the Constituent Documents the effect of which would be
to deny, diminish or encumber Indemnitee's right to indemnification under this
Agreement.
12. Liability Insurance and
Funding. For the
duration of Indemnitee's service as a director and/or officer of the Company and
for a reasonable period of time thereafter, which such period shall be
determined by the Company in its sole discretion, the Company shall use
commercially reasonable efforts (taking into account the scope and amount of
coverage available relative to the cost thereof) to cause to be maintained in
effect policies of directors' and officers' liability insurance providing
coverage for directors and/or officers of the Company, and, if applicable, that
is substantially comparable in scope and amount to that provided by the
Company's current policies of directors' and officers' liability insurance. Upon
reasonable request, the Company shall provide Indemnitee or his or her counsel
with a copy of all directors' and officers' liability insurance applications,
binders, policies, declarations, endorsements and other related materials. In
all policies of directors' and officers' liability insurance obtained by the
Company, Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits, subject to the same limitations, as are
accorded to the Company's directors and officers most favorably insured by such
policy. Notwithstanding the foregoing, (i) the Company may, but shall not be
required to, create a trust fund, grant a security interest or use other means,
including, without limitation, a letter of credit, to ensure the payment of such
amounts as may be necessary to satisfy its obligations to indemnify and advance
expenses pursuant to this Agreement and (ii) in renewing or seeking to renew any
insurance hereunder, the Company will not be required to expend more than 2.0
times the premium amount of the immediately preceding policy period (equitably
adjusted if necessary to reflect differences in policy periods).
13. Subrogation. In the event of
payment under this Agreement, the Company shall be subrogated to the extent of
such payment to all of the related rights of recovery of Indemnitee against
other Persons (other than Indemnitee's successors), including any entity or
enterprise referred to in clause (i) of the definition of "Indemnifiable Claim"
in Section 1(f). Indemnitee shall execute all papers reasonably required to
evidence such rights (all of Indemnitee's reasonable Expenses, including
attorneys' fees and charges, related thereto to be reimbursed by or, at the
option of Indemnitee, advanced by the Company).
14. No Duplication of
Patents. The Company
shall not be liable under this Agreement to make any payment to Indemnitee in
respect of any Indemnifiable Losses to the extent Indemnitee has otherwise
already actually received payment (net of Expenses incurred in connection
therewith) under any insurance policy, the Constituent Documents and Other
Indemnity Provisions or otherwise (including from any entity or enterprise
referred to in clause (i) of the definition of "Indemnifiable Claim" in Section
1(f)) in respect of such Indemnifiable Losses otherwise Indemnifiable
hereunder.
15. Defense of
Claims. Subject to the
provisions of applicable policies of directors' and officers' liability
insurance, if any, the Company shall be entitled to participate in the defense
of any Indemnifiable Claim or to assume or lead the defense thereof with counsel
reasonably satisfactory to the Indemnitee; provided that if Indemnitee
determines, after consultation with counsel selected by Indemnitee, that (a) the
use of counsel chosen by the Company to represent Indemnitee would present such
counsel with an actual or potential conflict, (b) the named parties in any such
Indemnifiable Claim (including any impleaded parties) include both the Company
and Indemnitee and Indemnitee shall conclude that there may be one or more legal
defenses available to him or her that are different from or in addition to those
available to the Company, (c) any such representation by such counsel would be
precluded under the applicable standards of professional conduct then
prevailing, or (d) Indemnitee has interests in the claim or underlying subject
matter that are different from or in addition to those of other Persons against
whom the Claim has been made or might reasonably be expected to be made, then
Indemnitee shall be entitled to retain separate counsel (but not more than one
law firm plus, if applicable, local counsel in respect of any particular
Indemnifiable Claim for all indemnitees in Indemnitee's circumstances) at the
Company's expense. The Company shall not be liable to Indemnitee under this
Agreement for any amounts paid in settlement of any threatened or pending
Indemnifiable Claim effected without the Company's prior written consent. The
Company shall not, without the prior written consent of the Indemnitee, effect
any settlement of any threatened or pending Indemnifiable Claim which the
Indemnitee is or could have been a party unless such settlement solely involves
the payment of money and includes a complete and unconditional release of the
Indemnitee from all liability on any claims that are the subject matter of such
Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably
withhold its consent to any proposed settlement; provided that Indemnitee may
withhold consent to any settlement that does not provide a complete and
unconditional release of Indemnitee.
16. Mutual
Acknowledgment. Both the Company and the Indemnitee acknowledge that in
certain instances, Federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company may be
required in the future to undertake to the Securities and Exchange Commission to
submit the question of indemnification to a court in certain circumstances for a
determination of the Company's right under public policy to indemnify Indemnitee
and, in that event, the Indemnitee's rights and the Company's obligations
hereunder shall be subject to that determination.
17. Successors and Binding
Agreement.
This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any Person acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor will thereafter be deemed the "Company" for purposes of this
Agreement), but shall not otherwise be assignable or delegatable by the
Company.
This
Agreement shall inure to the benefit of and be enforceable by the Indemnitee's
personal or legal representatives, executors, administrators, heirs,
distributees, legatees and other successors.
This
Agreement is personal in nature and neither of the parties hereto shall, without
the consent of the other, assign or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in Sections 17(a) and 17(b).
Without limiting the generality or effect of the foregoing, Indemnitee's right
to receive payments hereunder shall not be assignable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by the
Indemnitee's will or by the laws of descent and distribution, and, in the event
of any attempted assignment or transfer contrary to this Section 17(c), the
Company shall have no liability to pay any amount so attempted to be assigned or
transferred.
18. Notices. For all
purposes of this Agreement, all communications, including without limitation
notices, consents, requests or approvals, required or permitted to be given
hereunder must be in writing and shall be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission (with receipt
thereof orally confirmed), or one business day after having been sent for
next-day delivery by a nationally recognized overnight courier service,
addressed to the Company (to the attention of the Secretary of the Company) and
to Indemnitee at the applicable address shown on the signature page hereto, or
to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes of address will be
effective only upon receipt.
19. Governing Law. The validity,
interpretation, construction and performance of this Agreement shall be governed
by and construed in accordance with the substantive laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such
State. The Company and Indemnitee each hereby irrevocably consent to the
jurisdiction of the Chancery Court of the State of Delaware for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement, waive all procedural objections to suit in that jurisdiction,
including, without limitation, objections as to venue or inconvenience, agree
that service in any such action may be made by notice given in accordance with
Section 18 and also agree that any action instituted under this Agreement shall
be brought only in the Chancery Court of the State of Delaware.
20. Validity. If any
provision of this Agreement or the application of any provision hereof to any
Person or circumstance is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other
Person or circumstance shall not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal shall be reformed to the extent, and
only to the extent, necessary to make it enforceable, valid or legal. In the
event that any court or other adjudicative body shall decline to reform any
provision of this Agreement held to be invalid, unenforceable or otherwise
illegal as contemplated by the immediately preceding sentence, the parties
thereto shall take all such action as may be necessary or appropriate to replace
the provision so held to be invalid, unenforceable or otherwise illegal with one
or more alternative provisions that effectuate the purpose and intent of the
original provisions of this Agreement as fully as possible without being
invalid, unenforceable or otherwise illegal.
21. Miscellaneous. No
provision of this Agreement may be waived, modified or discharged unless such
waiver, modification or discharge is agreed to in writing signed by Indemnitee
and the Company. No waiver by either party hereto at any time of any breach by
the other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, expressed
or implied with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement.
22. Certain Interpretive
Matters. Unless the context of this Agreement otherwise requires, (1)
"it" or "its" or words of any gender include each other gender, (2) words using
the singular or plural number also include the plural or singular number,
respectively, (3) the terms "hereof," "herein," "hereby" and derivative or
similar words refer to this entire Agreement, (4) the terms "Article,"
"Section," "Annex" or "Exhibit" refer to the specified Article, Section, Annex
or Exhibit of or to this Agreement, (5) the terms "include," "includes" and
"including" will be deemed to be followed by the words "without limitation"
(whether or not so expressed), and (6) the word "or" is disjunctive but not
exclusive. Whenever this Agreement refers to a number of days, such number will
refer to calendar days unless business days are specified and whenever action
must be taken (including the giving of notice or the delivery of documents)
under this Agreement during a certain period of time or by a particular date
that ends or occurs on a non-business day, then such period or date will be
extended until the immediately following business day. As used herein, "business day"
means any day other than Saturday, Sunday or a United States federal
holiday.
23. Entire Agreement.
This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties hereto
with respect to the subject matter of this Agreement. Any prior agreements or
understandings between the parties hereto with respect to indemnification are
hereby terminated and of no further force or effect. This Agreement is not the
exclusive means of securing indemnification rights of Indemnitee and is in
addition to any rights Indemnitee may have under any Constituent
Documents.
24. Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original but all of which together shall constitute one and the
same agreement.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly
authorized representative to execute this Agreement as of the date first above
written.
| IX ENERGY HOLDINGS, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Chief Executive Officer | ||
| INDEMNITEE: | ||
| Name: Xxxxxx X. Xxxxx, Xx. | ||
| Address: | ||
Signature
Page to Director and Officer Indemnification Agreement
IN
WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly
authorized representative to execute this Agreement as of the date first above
written.
| IX ENERGY HOLDINGS, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Chief Executive Officer | ||
| INDEMNITEE: | ||
| Name: | ||
| Address: | ||
Signature
Page to Director and Officer Indemnification
Agreement
